There are federal laws, as well as state laws, in place to protect workers and to ensure they are paid fairly for the time that they work. Some workers, such as servers, depend on their tips. Some restaurants allow a server to keep all his or her tips while some do something called pooling of the tips, in which all the shift’s tips are combined and then they are divided amongst the servers, host or hostess, and bartenders. Laws state that supervisors cannot participate in the tip pool and are not entitled to receive any tips.
If there is a tip pool and the manager keeps some – or all – of the tips received, then laws are broken. You are the victim of wage theft because of the manager stealing tips, you do have laws that protect you, resources available to help you recoup your losses, and protections available to put an end to the wrongful actions. If your manager has been stealing tips, the first step is to notify your employer of what is happening. You should speak with the human resources department and provide them with supporting evidence that shows what has happened and who is taking the tips.
Keep Track Of All Communications
The Fair Labor Standards Act (FLSA) indicates that if an employee suffers from tip theft by a manager, then he or she is entitled to recover those tips plus other damages including attorney’s fees and court costs. You should keep track of all communications after you suffered from tip theft. You should document that you notified your employer. You should note the date and time that you notified human resources (HR) of the wage theft and note who you spoke with as well as their response.
Keep copies of any correspondence that you receive from HR, and you should make note of any follow-ups you make with your employer. You will want to show that you made an effort to resolve the issue with your employer and that you gave them benefit of the doubt thinking that the tip incident was an honest mistake or a clerical error. If the issue is not resolved, you will need to take the claim to the next level.
Gathering Evidence Of Wage Theft
When a manager or supervisor steals tips, it is considered a kind of wage theft. You will need to gather supporting evidence and documentation for your claim. You must prove how many tips were received and that the manager or supervisor was keeping a portion of those tips. You will need to prove how much came in, how much you should have received, and how much you were given.
You will need to compare your paystubs to your hours worked and review your tip logs. Also, you should get a copy of your employment contract and your employee handbook. Make note of coworkers who witnessed what happened or who may be experiencing the same wage theft. The more evidence that you have that will support your claim, the more likely you are to be able to successfully prove your claim.
You will need to contact the Wage and Hour Division in your state and explain that you suffered wage theft because your manager was stealing from your tips. Provide copies of evidence and be specific in the details that you provide so the representative investigating the claim will have everything needed to advance your case.
The representative will speak to your employer and try to resolve the matter. If the matter does not get resolved, the final step will be to file a wage theft lawsuit against your employer and let a court determine the outcome.
Speak With An Attorney
If you have suffered wage theft because your employer was stealing your tips, you should enlist the help of an employment law attorney who handles wage theft claims. You will need to make sure you have all your documentation and evidence in order, and that you can prove nothing changed after you told HR that your manager was stealing tips.
An employment law attorney will be familiar with the federal and state employment laws that apply to wage theft and specifically the theft of tips by management. Go over payment programs with your attorney because some will require a retainer and others will take cases on a contingency basis. You have limited time to pursue a wage theft claim if you suffered the theft of your tips, so complete the Free Case Evaluation Form.
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